The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1887-03-16
The Supreme Court 0vsrrules the Petition in
the Smith Robertson Case.
Judge Nblack Gives His Views to the Public
Touching the Controversy.
Hs Holds That the Senate Has the Right to
Choose Its President.
Full Text of His Explanation, Which Ac.
companied the Opinion of Chief JUS
tice Elliott as to Jurisdiction.

Another and doubtless the final ruling
of the Supreme Court in the Lieutenant
GoYernorship case Smith VS.. RobertSon)
was made yesterday. The court overruled
the petition of Mr.. Smith for a rehearing,
the opinion being written by Hon. Byron
X. Elliott, Chief-Justice. Tits as follows:
Robertson VS.. Smith on petition for a rehear-
ing. Elliott, G. j.
'1t is not necessary to again discuss the
questions considered in our former opinion,
but there is one point made in the brief on
the petition for rehearing which, perhaps,
requires notice. 1t is said: ''The injunc-
ton was granted by a Judge in vacation
whose jurisdiction depended not upon the
summons in the case, but on the notice
and service thereof which notice and service
thereof are not questioned" From this
premise counsel reach the conclusion that
Jurisdiction could not be challenged by
verified answer. This is novel doctrine,
for 1T implicitly assumes that the powers of
a judge in vacation are greater than those
of court in term, whereas, as is well
known, the powers of court in term are
very much greater than those of Judge in
vacation. 1t surely needs no argument to
prove that Judge in vacation can not
have greater jurisdiction than a court in
term. The counsel's position is untenable
for another reason, and that is this: 1t
tscitly assumes that the plea did not fully
in fact, the plea did deny the jurisdiction
of the Marion Circuit Court to proceed at
ali in the case. The injunction, as counsel
asserted over and over again in argument
was mere ancillary proceeding, and GER
tainly where there is no jurisdiction of the
person ss to the principal cause of action
there can be none over mere auxiliary
proceeding wholly dependent upon the
principal cause. There is yet even q
CT 81 n Of
counsel, for, as all the members of the
court agree, there was no jurisdiction of
the subject matter of the action so far as it
sought an Injunction, thar acts done IN
that branch Of the case by the relator could
not possibly confer jurisdiction of the per-
son of the appellant.
The question of jurisdiction was the
first question for decision, and of this
question there were two branches: First,
whether the court had jurisdiction of the
subject matter; second, whether the court
had jurisdiction of the person. The formal
grounds of the judgment of reversal were
that the action was not brought in the
proper county, and that the Circuit Court
had no Jurisdiction to issue the injunction
and upon those points all of the judges
agreed. Upon the other branch of the
question of jurisdiction-that is, jurisdic-
tion of the subject matter, there was di-
versity of opinion. The majority agreed in
holding that in this case the court had no
jurisdiction of the subject matter, but as
to the line OF reasoning by which that con-
clusion was reached they did not in all
things agree. All of the members
ton of the jurisdiction of the
subject matter as before the court for de-
cision, and as two of the Judges were of
the opinion that the court had jurisdiction,
while the other Judges thought otherwise
it was deemed proper by the court that
each of the Judges should submit his in
dividual views upon that bronch of the
question. Judges Mitchell and Howk ex-
pressed opinions upon the question as to
the rights of the parties respecting the
Office in controversy, because they regarded
a decision of that question as essential to
a decision of the question of jurisdiction,
but the majority declined to express any
opinion on that question, for, ia their
judgment their power was exhausted and
their duty done when they affirmed that
there was no jurisdiction.
THE VIEWS OF JUDGE NIBLACK.
Accompanying the courts opinion was
the following statement from Judge
Niblack, explaining his course with regard
to the controversy:
'As the petition for rehearing brings this
case again before us for such further con-
slderation as we may feel it to be our duty
to extend to it, l avail myself Of the OPP
portunity of adding something to the in
dividual views 1 expressed at the former
hearing.
II am induced to adopt this course
partly on account of the prominent rela-
tioDs which the cause has been made to
sustain toward current public affairs in
the State, and partly on account of the
misapprebepslon which seemingly exists
in the minds of many persons as to the
xsyhf hfQh I'D q OIL MI fu nf
members of this court from the express
ion of any opinion upon the actual merits
of TIE controversy which caused the in
stltution of this suit.
'In the views which / formerly submit
ted / discussed and expressed an opinion
upon some matters which were only Incl.
dental and collateral to the question of jur-
isdiction / was then considering. Such
merely incidental and collateral matters
were referred to and commented upon as
illustrative of the peculiar nature of the
contest then being waged between the ap-
pellant and the relator, Smith, and as, at
least indirectly, sustaining my position
that the courts of the State were utterly
without jurisdiction over the subject mat
ter Of that contest, and for no other pur-
pose.
'The main features of the contest which
followed the Presidential election, held in
the year 1876, have become a matter of
history, and are hence, within the reach,
and in consequence, presumably within the
common knowledge of all. The Electoral
Commission created to assist in the settle
ment OF that contest was not in any proper
view, a judicial tribunal. Its duties were
kindred to those of referee in a judicial
proceeding. 1t was authorized to examine
and to report to Congress upon certain
questions referred to it, without trenching
upon the rights OF the two Hauses of Cou-
- knIw do xxrLA aV1xv
had been elected either President or Vice.
President of the United States. 1t was or
ganized upon the accepted theory that
the final decision as to who had been so
elected rested ultimately with Congress-
and could not, under the Constitution of
the United States, be delegated to any
other tribunal, and that consequently,
whatever such Electoral Commission
might report or recommend, would be In
Its nature advisory only.
Congress acted upon that theory when
the Commission reported, and the evidence